Monday, May 10, 2010

From Phoenix to Times Square

UPDATED! (See end of post)

By Mike Dorf

Under the Supreme Court's Fourth Amendment cases (the relevant ones discussed in a column I wrote in 2004), the police may not simply stop someone and ask him for his identity. However, if the police have already lawfully stopped someone on reasonable suspicion of a crime, they can ask him for his identity, and pursuant to Hiibel v. Sixth Judicial District Court of Nevada, a state can make it an offense for a person thus stopped not to self-identify. The (legal advisors to the) drafters and legislators who supported AZ SB 1070 may well have been thinking about Hiibel when they wrote the law as they did: "lawful contact" will typically involve a Terry stop (explained in my FindLaw column last week), and so once someone is stopped, he can be asked for I.D., whereupon reasonable suspicion of immigration status violations could arise.

That's fair enough, but recall that SB 1070 does not only apply when a police officer has made a lawful Terry stop, but whenever a state or local govt official in AZ has made "lawful contact" with a person. As far as I can tell, AZ law does not define "lawful contact," but I would think it means simply that the govt official's contact with the suspect is not itself the product of illegal action, such as an unlawful search. In that sense, it seems related to the "plain view" doctrine in Fourth Amendment law: An officer who is lawfully present somewhere--say, in a home executing a warrant based on probable cause to search for a stash of heroin--can take action based on new evidence in "plain view"--say, a dead body in the bathroom where the officer was looking for the drugs. Likewise here, the AZ legislators may well have thought that they were mandating action on immigration suspects whenever govt officials encountered them in the ordinary course of events.

As I noted in the column, one such possible lawful contact could involve municipal workers. I gave the example of a clerk at a municipal hospital who becomes suspicious based on how a patient fills out an insurance form. It seems pretty clear that if fully enforced, SB 1070 would deter undocumented immigrants from using services such as public hospitals; indeed, this may well be part of what its proponents wanted.

But there's another kind of encounter covered by SB 1070: Suppose a police officer is simply walking the beat and observes a person he has a hunch is an undocumented immigrant. Under Brown v. Texas, the officer can't stop the person even brieflyto ask for I.D. And that limit may explain why, in focusing on police enforcement of SB 1070 (as opposed to enforcement by other state and local officials in AZ), defenders of SB 1070 insist on talking mostly about cases in which the suspect has already been stopped on suspicion of something else.

There is an important twist, however. Brown, Hiibel and the other Fourth Amendment cases are predicated on the assumption that before the police ask someone for I.D., they don't know who he is. That won't be true in small towns where police know the "usual suspects." Nor may it be true for very much longer anywhere. As we learned recently, Times Square in Manhattan is under heavy surveillance. NYPD Comm'r Ray Kelly would like to add still more surveillance cameras. It's only a matter of time before face recognition software and other biometrics enable police on the beat to get real-time information about the people they're seeing in front of them. At that point, they very well could develop reasonable suspicion (or something approaching certainty) regarding individual suspects merely observed.

In a sense, that would be very good news. Such information could be used to thwart terrorist attacks and other crimes. Moreover, in the immigration context, more accurate individualized information would make reliance on stereotypical factors (such as skin color and accent) even less reasonable than it is today.

But there is also a very serious downside here too. The relevant technology is likely to be deployed long before it is perfected. And thus for a long time, the real-time coordination of faces with identities will look something like the no-fly list: subject to both false positives and false negatives. But because reasonable suspicion does not mean certainty, stops (whether for immigration violations or other offenses) will be permissible in many instances where the police prove to have stopped perfectly innocent people. U.S. citizens erroneously but reasonably believed to be undocumented immigrants will then be stoppable and may be required to show their papers. In this way, widespread surveillance could erode the protections Brown now affords.

---------------------------UPDATE: The original bill was apparently modified to make it less interesting to constitutional law professors. (Don't these people know what's important?!) The new version only now requires law enforcement--not other state officials--to attempt to determine immigration status only upon a "stop, detention or arrest," rather than "any lawful contact." That largely renders irrelevant my worry about social services utilization, with a caveat to which I'll return in a moment. As for police officers, note that the new version does not forbid police officers from inquiring into immigration status outside the context of an otherwise authorized stop, detention or arrest; it simply doesn't require it. Thus, we might construe my original post as addressing cases in which a police officer in AZ or any other state takes it upon himself to investigate a person's immigration status. Thanks to Bob Moss for pointing out the change to me.

2 comments:

My apologies for not having a citation for this, but I've been reading so much on the law that I am not sure where I saw it, except that it was from a source I'd learned was generally trustworthy -- possibly Kyle from PFAW or Dave Neiwert. I believe the amendment also includes requiring the police to investigate the status of any person they investigate on a complaint over a violation of local ordinances such as housing, and -- this was what I was unable to reconfirm -- that police were required to respond to such complaints. This would give an anti-immigrant 'activist' the opportunity to walk a neighborhood and file any complaints he wanted against any 'visibly Hispanic' resident. (It would, i realized when writing this, also give a businessman who used a rotating staff of 'undocumented' the chance to skip a payday by reporting his workers the previous day.)

But I think the whole discussion is, my apologies, a 'silly academic exercise' because it grants a 'presumption of legitimacy' that is not valid. A law can be discriminatory in intent without being discriminatory in its language -- the obvious example is the disparity in sentencing between crack cocaine and powdered cocaine, or the homophobic argument that 'a gay man has the exact same right as a straight man -- to marry the woman of his choice.' (Or an ordinance passed in a community with a large number of both Christian and Jewish merchants requiring Sunday closing, passed knowing that this required the Jewish merchants to miss two days of sales while the Christians needed to miss just one.)

[Part 2]Sometimes you have to 'go behind the language.' The inevitable end of segregation might have taken a couple of more decades if there had been an (unprodded -- unlike the Oklahoma Law School case) attempt by the Southern states to make 'seperate' really 'equal.'

One point I keep making is that the anti-Hispanic bigots (who claim merely to be against 'illegal' immigration -- until you read their writings) have done a sadly excellent job at subtly changing the debate so that people read 'illegal alien' (I only use the phrase because they use it) as 'illegal Hispanic.'

In fact there are 'undocumented aliens' from everywhere, including the most "European' countries. As a New Yorker, I could direct people to at least two communities with large numbers of undocumented Irish. And I wish I had the money to hire about twenty-five of them to spend a week in different parts of Arizona and report on the number of them who were even asked for their papers, even if they came in contact with the law. (I have the feeling that if I bet on 'zero' and other people picked different numbers, I could win the expense back.)

In fact, given the emphasis on Hispanics even above other 'disfavored groups' I would love to see -- were the law to actually be put into practice -- a comparison of the number of raids on "Jose's Taco Stand" compared to "Xiang Garden." (Though I expect that "Ahmed's Gyros and Falafel" mioght also get more than its fair share of attention.)

I believe that this is a case where looking at the person writing the law -- and the assistance that he received from FAIR, which SPLC lists as a 'hate group' -- is enough to make any discussion based on a presumption of legitimacy moot. As usual, Dave Neiwert has the best coverage on the background of Russell Pearce.

(For those of you who don't know Dave, he is a long-time professional reporter, both print and tv, whose beat was, and the subject of his books and blogging has been, the far right movements of the West, dating back to the first rise of the Patriot movement. (His books have also looked at the historical background including 'sunset towns' and the Japanese Internment.) He is an extfremely careful and professionally-minded reporter, always sourcing his statements. And, most notably in the blogosphere, he does not use the term 'fascism' casually, but only when it is the literally precise term. (He always argued against even describing the worst excesses of the Bush Administration as 'fascist' though he did consider them 'proto-fascist.' And, significantly, he was one of the two people who first brought the work of Robert Altmeyer (sp?, mundanity -- cat feeding -- is pressing me for time and keeping me from checking) to my attention. The other was, of course, your Findlaw colleague, John Dean.)